After the Court's decision in Arizona v. Inter Tribal Council last year, I noted the unusual breadth of the Court's language concerning the state's interest in enforcing (and not merely establishing) voter qualifications. (I anticipate having some comments on this unusual language in a forthcoming article.) But in the sequel to this case, Kobach v. EAC, a federal court has issued an opinion (PDF) with a disconcerting turn of logic.

I previously highlighted expansive language from the Court:

In case you're still not convinced, n.10 is also significant: if a court cannot compel the Election Assistance Commission to act on Arizona's request, "Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form" (emphasis added).

I think the "might" in that sentence is not that there "might" be a constitutional right; instead, it is that Arizona "might" have established, factually, that a "mere oath" will not suffice (slip op. at 17). Consistent with the earlier progression I described, I wonder if the Court now assumes that there is a "constitutional right" of the state to not simply proscribe voter qualifications, but to enforce them absent federal interference.

The EAC decision provides no citation or analysis of how ITCA leads to [the] conclusion that the EAC has the authority to decide what is necessary. Nor is there express language in the NVRA or in the ITCA opinion granting the EAC such broad authority to determining what information is necessary. . . .

Further, the U.S. Supreme Court characterizes the EAC as having "a nondiscretionary duty" to include Arizona's proof-of-citizenship requirement in the instructions if Arizona can establish in this Court "that a mere oath will not suffice to effectuate its citizenship requirement." So, at the least, the ITCA opinion establishes that there is a point at which the EAC loses whatever discretion it possesses to determine the contents of the state-specific instructions.

There are two independent holdings. The first is a question of statutory interpretation; that is, it might be the case that the NVRA does not give the EAC the power to determine what information is "necessary" to enforce voter qualifications. The second is a question of the power the EAC holds; that is, at some point, a state "can establish" that its own enforcement procedures are "necessary."

The first is an interesting proposition about the scope of the statute, but I'll set that aside for the moment. The more problematic portion of the court's opinion comes when it addresses how states may establish certain information as "necessary" (p. 27):

Here, Arizona and Kansas have established that their state laws require their election officials to assess the eligibility of voters by examining proof of their U.S. citizenship beyond a mere oath. The EAC decision makes the case that the states have other means available to enforce the citizenship requirement. But the Arizona and Kansas legislatures have decided that a mere oath is not sufficient to effectuate their citizenship requirements and that concrete proof of citizenship is required to register to vote. Because the Constitution gives the states exclusive authority to set voter qualifications under the Qualifications Clause, and because no clear congressional enactment attempts to preempt this authority, the Court finds that the states' determination that a mere oath is not sufficient is all the states are required to establish.

Therefore, the Court finds that Congress has not preempted state laws requiring proof of citizenship through the NVRA. This interpretation is not "plainly contrary to the intent of Congress" because the NVRA is silent as to the issue. Consistent with ITCA, because the states have established that a mere oath will not sufficient to effectuate their citizenship requirement, "the EAC is therefore under a nondiscretionary duty" to include the states' concrete evidence requirement in the state-specific instructions on the federal form.

This cannot be correct.

First, if the states have "exclusive" authority to set voter qualifications, then Congress could not "preempt" this authority. Under the Times, Places and Manner Clause, Congress and the states have concurrent power--it resides in the states until Congress preempts it. But to the extent one is solely discussing qualifications (as the broad language of Inter Tribal suggests), that power is not one Congress may preempt. Further, it is not a power in dispute in this case; it is the enforcement power over qualifications that is in dispute.

Second, the states must "establish" that "a mere oath will not suffice to effectuate its citizenship requirement." The court's analysis makes no such finding. Its sole finding on the issue is ipse dixit: "their state laws require their election officials to assess the eligibility"; "the Arizona and Kansas legislatures have decided that a mere oath is not sufficient." That is not a finding that it is not sufficient; that is a restatement of the law.

Now, it may be that the NVRA is "silent" on this issue, in which case this analysis is truly dicta. But, in the event the NVRA is not silent, or in the event Congress wants to make the NVRA speak on the issue of enforcement, this analysis matters a great deal. Or, it may be that Arizona and Kansas have created a record that "establishes" that a "mere oath will not suffice," and the Court did not speak to that issue.

But the language from Inter Tribal has effectively limited the Times, Places and Manner Clause power of Congress (as the court in Kobach explains earlier in the opinion). And the fallout continues in confusion in this case.